Now That Trump Won, What Happens to My DACA?

Strategy considerations for people with Deferred Action for Childhood Arrivals in light of Republican victory in 2016 election.

**WARNING: The below article was drafted immediately after Donald J. Trump was elected to office. As of late 2017, his administration is in the process of phasing DACA out. Unless Congress takes action, no new DACA applications will be accepted in the future, and only limited renewals will be allowed. For details, see "Trump Ends DACA Program for Young Immigrants: What's Next?".

Question

My parents brought me to the U.S. when I was a child, and we overstayed our visas. Once I finished high school, I applied for DACA, and I have since graduated from college and gotten a job. However, my work permit runs out in 2017, and Donald Trump has won the U.S. presidency. Newspaper reports all along have been saying that he might cancel the DACA program.

What will that mean for me? I’m terrified of being sent back to my home country—I don’t even speak the language!

Answer

Donald Trump has changed what he says about his stance on immigration matters many times, so it’s hard to say for certain whether he would indeed cancel the DACA program. But he certainly has taken a harsh tone on immigration matters, stated at times that he would eliminate the Deferred Action for Childhood Arrivals (DACA) program outright, and criticized his Democratic opponent Hillary Clinton for promising amnesty (which DACA is not, in that it does not lead to a green card, but the term “amnesty” is often used loosely by political candidates and the media).

So let’s assume that Trump does wish to eliminate DACA once he becomes president. How will this play out?

First of all, let’s remember that, although the election took place in November of 2016, the new president is not sworn in until January 20, 2017. So, no one’s DACA status is at risk before then.

As for whether Trump has the power to repeal the DACA program, he does. It was created by Executive Order (issued by President Obama rather than an act of Congress), and therefore can be undone by an executive action.

Your work permit should, however, be good until the day it expires. It would be highly unusual for the U.S. government to attempt to renege on an earlier grant of rights such as this.

If the DACA program is gone and your grant has expired, however, you do not have a right to continue living and working in the United States. That does not necessarily mean that removal proceedings will be started against you, however. As tough as Trump’s talk is, a long-time reality of the Department of Homeland Security is that it’s underfunded, and doesn’t have the resources to pursue every undocumented immigrant in the United States. The pool of DACA recipients alone is approximately 700,000 people. Beefing up the funding would require an act of Congress, and could not be done by the president alone—so we really don’t know what will happen with that.

In the current funding situation, Immigration and Customs Enforcement (ICE, the agency charged with apprehending undocumented immigrants) prioritizes criminal and aliens without many ties in the U.S., which could not possibly describe anyone approved for DACA. (And Trump has named criminal aliens as his first priority for deportation, too.) The rest of the undocumented population is still technically at risk of deportation, but ICE may not only ignore them, but might actively close any proceedings against them, using its "prosecutorial discretion."

You would, however, if you continued to live and work in the U.S. after your DACA status ran out, be accruing what’s called “unlawful presence.” Legally speaking, this wasn’t an issue for you before you turned 18. But for anyone over 18, accruing more than 180 days of unlawful presence makes you “inadmissible” to the U.S. (unable to receive a visa or green card) for three years. With 365 days of unlawful presence, your inadmissibility period jumps to ten years. Even if you're thinking, "What's the difference, I'm already undocumented," realize that you might, at some point, have an employer who wants to sponsor you for a green card, or might marry a U.S. citizen--in either of which cases, being inadmissible could create serious barriers to going forward with a green card application.

Your best bet at this point may be to renew your DACA and work permit (also called an Employment Authorization Document or EAD) as soon as you're able. Because of delays at U.S. Citizenship and Immigration Services (USCIS), you want to minimize the risk that your renewal will be processed under a Trump administration. The earliest you can apply to renew is 150 days before your expiration date.

Talking to a lawyer about your situation might be a good idea. And know, in any case, that you are not alone. A number of other DACA recipients, and their attorneys and various nonprofit organizations, will be looking for solutions to this issue in response to Donald Trump having won the 2016 election.